Smith Micro Terms and Conditions

Please read these Terms and Conditions (the “Agreement”) carefully. Your use of the Site (as defined below) constitutes your agreement to this Agreement.

This Agreement is between you (“you”) and Smith Micro Software, Inc. (“Smith Micro,” “we,” “us”) concerning your use of the websites located at www.smithmicro.com, my.smithmicro.com, www.stuffit.com, www.sendstuffnow.com, store.smithmicro.com, motionartist.tv, scattershow.smithmicro.com, poser.smithmicro.com, anime.smithmicro.com, manga.smithmicro.com, motionartist.smithmicro.com, and www.contentparadise.com (each, together with any other Smith Micro owned site that includes this Agreement, successor site and all Services and Content (as defined below), a “Site”).

Note Regarding the Use of the Site by Children: The Site is not directed to individuals under the age of thirteen (13), and we request that such individuals do not provide Personally Identifiable Information through the Site.If we learn that it has collected Personally Identifiable Information on a child under the age of 13, we will delete that data from its systems. We encourage parents and guardians to go online with their children.

1. Acceptance of Terms

The Site is made available by Smith Micro subject to this Agreement. We reserve the right to update or make changes to this Agreement from time to time in our sole discretion without prior notice, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Site. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the bottom of this Agreement. Any changes to our Agreement will become effective upon our posting of the revised Agreement on the Site. Use of the Site following such changes constitutes your acceptance of the revised Agreement then in effect. We encourage that you review this Agreement each time you use the Site. When using any Services and Content (as defined below), you agree that you are subject to any additional posted guidelines, rules, terms and conditions applicable to such Services and Content, which are hereby incorporated by reference into this Agreement. By using the Site, you agree to the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement, please do not use the Site.

We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site, with or without notice; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that neither we nor any of our affiliates (collectively, “Affiliated Entities”) shall be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any Service, content, feature or product offered through the Site. Your continued use of the Site after such changes will indicate your acceptance of such changes.

2. Jurisdictional Issues

The Site is hosted by Smith Micro from the United States, and is not intended to subject Smith Micro to the laws or jurisdiction of any state, country or territory other than that of the United States. Smith Micro does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. Those who choose to access the Site do so on their own initiative and at their own risk, and are responsible for complying with all applicable federal, state and local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the Site's availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

3. Description of the Services and Content

We provide users of the Site with access to certain content and services related to software products, which may include, without limitation: (a) services such as purchasing functionality, registration functionality, Promotions (as defined below), RSS feeds of news, profiles, forums, blogs, galleries, message boards, chat rooms, instant messaging, email profiles, tools, photos, videos, reviews, ratings and links to third party websites (“Services”); and (b) content such as audio and video clips, photographs, graphics (both 2D and 3D), images, text, data, user comments, opinions, postings, messages, software tutorials, software free trials, software updates and other similar content ("Content"). On www.contentparadise.com, the Smith Micro and non-affiliated independent third parties (“Content Providers”) provide users of that Site with Services and Content.

4. Information Submitted Through the Site

Your submission of information through the Site is governed by Smith Micro's Privacy Policy, which is located at www.smithmicro.com/privacy (the “Privacy Policy”). This Agreement incorporates by reference the terms and conditions of the Privacy Policy. You represent and warrant that any information you provide in connection with your use of the Site is and shall remain true, accurate, and complete, and that you will maintain and update such information regularly. You agree that if any information you provide is false, inaccurate, obsolete or incomplete, we may terminate your use of the Site and/or any of the Services and Content.

5. Rules of Conduct

While using the Site you will comply with all applicable laws, rules and regulations. In addition, we expect users of the Site to respect the rights and dignity of others. Your use of the Site is conditioned on your compliance with the rules of conduct set forth in this section; any failure to comply may also result in termination of your access to the Site pursuant to Section 20 below. You agree that you will not:

  • Post, transmit, or otherwise make available, through or in connection with the Site:

    1. Anything that is or may be (a) threatening, harassing, degrading, abusive, destructive, hateful or intimidating; (b) defamatory or libelous; (c) fraudulent or tortious; (d) obscene, indecent, pornographic or otherwise objectionable; (e) a personal attack or retaliation for any personal attack or (f) protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express prior consent of the owner of such right.

    2. Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; or that encourages or provides instructional information about illegal activities or activities such as "hacking," "cracking," or "phreaking."

    3. Any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.

    4. Any unsolicited or unauthorized advertising, promotional material, "junk mail," "spam," "chain letter," "pyramid scheme" or investment opportunity, or any other form of solicitation.

    5. Any material, non-public information about a company without the proper authorization to do so.

    6. Any advertising or linking to any material and/or web sites that are age restricted.

    7. Any unacceptable images including depictions of rape, torture, and sexual, lewd or illegal acts

    8. Any threats of physical harm, property damage or acts of violence toward another individual or group of individuals.

  • Use the Site to defame abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others' privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the Site.

  • Use the Site in a manner that is abusive of Smith Micro programs or other information on the Site.

  • Use the Site in furtherance of or to commit any fraudulent or other illegal activities, or otherwise in violation of any applicable law, regulation, legal agreement or Smith Micro’s published policies.

  • Pay for items received from the Site with fraudulent credit cards or refuse to pay for items received from the Site.

  • Impersonate any person or entity, including without limitation any representative of Smith Micro; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site; or express or imply that we endorse any statement you make.

  • Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks.

  • Restrict or inhibit any other person from using the Site (including without limitation by hacking or defacing any portion of the Site).

  • Use the Site to advertise or offer to sell or buy any goods or services without Smith Micro’s express prior written consent.

  • Use the Site to solicit or trade any products illegally, including requests and/or distribution of computer software, software security overrides and serial numbers

  • Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site.

  • Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Site.

  • Remove any copyright, trademark or other proprietary rights notice from the Site or materials originating from the Site.

  • Frame or mirror any part of the Site without Smith Micro’s express prior written consent.

  • Create a database by systematically downloading and storing Site content.

  • Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather Site content or reproduce or circumvent the navigational structure or presentation of the Site without Smith Micro’s express prior written consent.

Additionally, you acknowledge and agree that you (and not Smith Micro) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Site, and paying all charges related thereto.

6. Purchases

We may make available products and services for purchase through the Site, and we may use third-party suppliers and service providers (each, a “Payment Service”) to enable e-commerce functionality on our Site. If you wish to purchase any product or service made available by us through the Site (each such purchase, a "Transaction"), you may be directed to a webpage that is hosted by a Payment Service (or the Payment Service’s service providers) and not by Smith Micro (such page, the “Payment Service Page”). You will be asked to supply certain information relevant to your Transaction through either our Site or a Payment Service Page, including without limitation your credit card number or other payment account number, the expiration date of your credit card, your billing address, and your shipping information. If you are using and providing information through a Payment Service Page, you will be subject to the terms of service and privacy policy of Payment Service, rather than this Terms of Service and Smith Micro’s Privacy Policy. Smith Micro has no control over, and shall not be responsible for, any Payment Service’s use of information collected through the Payment Service Page. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant Smith Micro and any Payment Service the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.

7. Products, Content and Specifications

Descriptions and images of, and references to, third-party products or services available in connection with the Site do not imply Smith Micro’s endorsement of such third-party products or services. All descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on this Site, are subject to change at any time without notice. The inclusion of any products or services on this Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from this Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. Smith Micro reserves the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar Promotions; to bar any user from making any or all Transaction(s); and/or to refuse to provide any user with any product or Service. Refunds and exchanges will be subject to Smith Micro’s refund and exchange policies then in effect. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.

8. Shipping Limitations

When an order is placed, it will be shipping to an address designated by the purchaser as long as that shipping address is complete and compliant with the shipping restrictions contained on this Site. All purchases from this Site are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from this Site pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.

If your purchase is downloadable, you will be able to download the downloadable purchase from the Site. Smith Micro does not guarantee availability of downloadable purchases after the first download or 30 days, whichever comes first. It is solely the responsibility of the purchaser to download and back up the purchased file. Smith Micro may make available for purchase an extended download service which will allow you to access downloadable purchases for up to two (2) years after purchase.

9. Accuracy of Information

We attempt to ensure that information on this Site is complete, accurate and current. Despite our efforts, the information on this Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currency of any information on this Site. For example, products included on this Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Site. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any user. We also may require verification of information prior to the acceptance and/or shipment of any order.

10. Registration; User Names and Passwords

You may be required to register with Smith Micro in order to access certain Services and Content or areas of the Site. With respect to any such registration, we may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.

Your user name and password are for your personal use only, and not for use by any other person. You are responsible for maintaining the confidentiality of any password you may use to access the Site, and agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party. You are fully responsible for all interaction with the Site that occurs in connection with your password or user name (including, without limitation, all Transactions). You agree to immediately notify Smith Micro of any unauthorized use of your password or user name or any other breach of security related to your account or the Site, and to ensure that you “log off”/exit from your account with the Site (if applicable) at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations. In the event Smith Micro reasonably believes that your actions affect other users or third parties, Smith Micro may warn such other users or third parties, including law enforcement. Smith Micro may also investigate any perceived misuse of your account, refer matters to law enforcement, and/or take other legal action.

11. Profiles and Forums

You may post certain information and materials on your “profile page” (your “Profile”). Further, we and/or our service providers may make available through the Site Services (for example, message boards, forums, blogs, chat rooms, instant messaging and comment and review functionality on the Site, among other Services) to which you are able to post information and materials (each, a "Forum").

Information contained in the Profiles and Forums may be provided by employees of Smith Micro and the Affiliated Entities, Content Providers, and third party visitors to the Site. Please note that Site visitors may post messages or make statements in the Profiles and Forums that are inaccurate, misleading or deceptive. Smith Micro, the Affiliated Entities, the Content Providers and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers neither endorse nor are responsible for any opinion, advice, information or statements made in the Profiles and Forums by third parties. Without limitation, Smith Micro, the Affiliated Entities, the Content Providers and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers are not responsible for any information or materials made available through the Profiles and Forums (including without limitation errors or omissions in Profiles and Forum postings or links or images embedded in a Profile or in Forum messages) or results obtained by using any such information or materials. Under no circumstances will Smith Micro, the Affiliated Entities, the Content Providers or their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers or service providers, be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed in the Profiles and Forums reflect solely the opinions of the individuals who submitted such opinions, and may not reflect the opinions of Smith Micro.

In addition, Smith Micro, the Affiliated Entities, the Content Providers and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information voluntarily made public through a Profile or a Forum or any other part of the Site. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE IN A PROFILE OR A FORUM OR OTHERWISE ON THE SITE, YOU DO SO AT YOUR OWN RISK. Any information provided by you using these Services is considered public information. We strongly recommend that you exercise forethought and caution prior to disclosing any personal information while using these Services.

12. License

The provisions of this Section 12 shall apply unless a separate agreement has been entered into between you and Smith Micro concerning the subject matter of this Section 12. For purposes of clarity, you retain ownership of any information, content and/or materials you submit through a Profile or a Forum or otherwise through the Site (each, a “Submission”). However, please note that we need certain rights to your Submissions to be able to make them available on the Site. As such, you hereby grant to Smith Micro, the Affiliated Entities, the Content Providers and their respective service providers and designees a worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, perpetual, irrevocable right and license, without compensation to you: to use, reproduce, distribute, adapt (including without limitation edit, modify, translate, and reformat), create derivative works of, transmit, publicly display and publicly perform such Submission, in any media now known or hereafter developed.

This license is non-exclusive (so you can license your Submissions to others), worldwide (as the Internet is global in its reach), fully-paid up and royalty-free (so that we do not have to pay you for posting your Submissions), sublicenseable through multiple tiers (so that we can use our service providers and subcontractors to provide Services). We may amend and vary these license terms regarding Submissions from time to time as may be reasonable and subject to giving you notice of the changes.

For each Submission, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this section, and that such Submission, and your provision thereof to and through the Site, comply with all applicable laws, rules and regulations. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory. We request this waiver to help ensure that we have all the rights we may need to provide the Services available through the Site.

13. Monitoring

You acknowledge and agree that (a) we reserve the right (but have no obligation) to do any or all of the following, at our discretion: (i) monitor Submissions; (ii) alter, remove, or refuse to post or allow to be posted any Submission; and/or (iii) disclose any Submissions, and the circumstances surrounding their transmission, to any third party in order to operate the Site; to protect Smith Micro, the Affiliated Entities, the Content Providers and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, and the Site's users and visitors; to comply with legal obligations or governmental requests; to enforce this Agreement; or for any other reason or purpose.

14. Smith Micro's Proprietary Rights

The Site is owned and operated by the Smith Micro in conjunction with others pursuant to contractual arrangements. The information and materials made available through the Site, including the Services and Content, are and shall remain the property of Smith Micro and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. You acknowledge that these rights are valid and enforceable. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Smith Micro to access and use the Site, you may view one (1) copy of any content on the Site to which we provide you access hereunder on any single computer solely for your personal, non-commercial home use, provided that you keep intact all copyright and other proprietary notices. Except as expressly authorized in advance by Smith Micro in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Site or any materials made available through the Site. You acknowledge that you do not acquire any ownership rights by using the Site or the information and materials available therein. Downloading Content does not constitute a transfer of property; it is an acquisition of the right to use the Content according to our Copyright Policy which you agree to by accepting this Terms of Service.

The copyright in all material provided on this site ("Site") is held by Smith Micro or by the original creator of the material. Except as stated herein, none of the material may be copied, reproduced, distributed, republished, translated, downloaded, displayed, posted, communicated to the public by telecommunication or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Smith Micro or the copyright owner. Permission is granted to display, copy, distribute and download the materials on this Site for personal, non-commercial use only provided you do not modify the materials and that you retain all copyright and other proprietary notices contained in the materials. You also may not, without Smith Micro Software, Inc.'s permission, "mirror" any material contained on this Site on any other server. This permission terminates automatically if you breach any of these terms or conditions. Upon termination, you will immediately destroy any downloaded and printed materials. Any unauthorized use of any material contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. All rights, title and interest not expressly granted are reserved.

The Trade names, trademarks, service marks, and logos (collectively, “Trademarks”) used and displayed on this Site are registered and unregistered Trademarks of Smith Micro. Such Trademarks include without limitation, the Smith Micro Software, Inc. name and logo, QuickLink, NetWise, Poser, StuffIt, Scattershow, MotionArtist, and any other Trademarks and logos listed at http://www.smithmicro.com/trademarks and any associated logos. All trademarks and service marks on the Site not owned by Smith Micro are the property of their respective owners and are used for identification purposes only. For purposes of Japan law regarding unregistered trademarks (e.g., a pending trademark application), the right in and to a trademark in Japan may not be exclusive until it is validly registered. You may not remove, modify, alter, cover or deface any trademark, trade names, product/service names, logo, copyright or other proprietary notices, legends, symbols or labels in the Application and all related documentation and materials (in any form). Any reference to any third party commercial products, processes or services by trade name, trademark, logo, and company and/or product/service names mentioned or displayed in the Site does not constitute or imply Smith Micro’s endorsement, recommendation or favoring by Smith Micro or any of its suppliers/licensors. Nothing herein authorizes you to use any of its licensors’ names or respective trademarks (e.g., logos, name, etc.) mentioned or displayed on the Site. The trade names, trademarks and service marks owned by Smith Micro, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Smith Micro’s Trademarks without our express prior written consent. The Smith Micro aggressively enforces its intellectual property rights to the fullest extent of the law. The Smith Micro’s Trademarks may not be used in any way, including in advertising or publicity pertaining to distribution of materials on this Site without express prior written consent.

15. Links

The Site may provide links to other web sites and online resources provided by third parties and Smith Micro provides these links merely as a convenience. Because Smith Micro has no control over such sites and resources, you acknowledge and agree that access to any other Internet site linked to this Site is at your own risk and Smith Micro and the Affiliated Entities and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers are not responsible for the accuracy, reliability or availability of such web sites or online resources, and Smith Micro and the Affiliated Entities and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers neither endorse nor are responsible or liable for any content, advertising, products or other materials on or available through such web sites or online resources. Other web sites may provide links to the Site with or without our authorization. You acknowledge and agree that Smith Micro and the Affiliated Entities and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to the Site, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.

YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.

Smith Micro shall have the right, at any time and in its sole discretion, to block links to the Site through technological or other means without prior notice.

16. Promotions

In addition to the terms and conditions of this Agreement, any contests, sweepstakes, surveys, games, or similar promotions (collectively, "Promotions") made available through the Site may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein. Smith Micro urges you to review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to this Agreement, governs any information you submit in connection with such activities. To the extent that the terms and conditions of such rules conflict with this Agreement, the terms and conditions of such rules shall control.

17. Disclaimer of Warranties

THE SITE AND ANY GOODS OR SERVICES AND CONTENT MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE ARE PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS, VALIDITY, RELIABILITY OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SITE. SMITH MICRO AND THE AFFILIATED ENTITIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE AND ANY PRODUCT OR SERVICES AND CONTENT (INCLUDING WITHOUT LIMITATION, THIRD PARTY PRODUCTS AND SERVICES AND CONTENT) OBTAINED THROUGH THE SITE, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.

18. LIMITATION OF LIABILITY

SMITH MICRO AND THE AFFILIATED ENTITIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, SMITH MICRO AND THE AFFILIATED ENTITIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY CONTENT POSTED ON THE SITE BY SMITH MICRO OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE. THE MAXIMUM LIABILITY OF SMITH MICRO FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO SMITH MICRO TO ACCESS AND USE THE SITE. IF YOUR USE OF MATERIALS FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

While we try to maintain the integrity and security of the Site and the servers from which the Site is operated, we do not guarantee that the Site will be or remain secure, complete or correct, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any unauthorized third party alteration to the Site, contact us at webmaster@smithmicro.com with a description of the material(s) at issue and the URL or location on the Site where such material(s) appear.

19. Indemnity

You agree to defend, indemnify and hold harmless Smith Micro and the Affiliated Entities and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Site (including all Transactions); or (b) any violation of this Agreement by you.

20. Termination

This Agreement is effective until terminated. Smith Micro, in its sole discretion, may terminate your access to or use of the Site, at any time and for any reason, including if Smith Micro believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the Site will immediately cease and that Smith Micro may immediately deactivate or delete your password and user name, and all related information and files associated with them, and/or bar any further access to such information or files. You agree that any termination of your access to or use of the Site may be effected without prior notice. You agree that Smith Micro and the Affiliated Entities shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 2, 6, 7, 9, 12, 14, 17-21, 23 and 25-27 shall survive any expiration or termination of this Agreement.

21. Governing Law; Jurisdiction

This Agreement is governed by and shall be construed in accordance with the laws of the State of California, U.S.A., without regard to its principles of conflicts of law. You agree to exclusive jurisdiction of the federal and state courts located in Orange County, California, U.S.A., and waive any jurisdictional, venue or inconvenient forum objections to such courts.

such termination. Sections 2, 6, 7, 9, 12, 14, 17-21, 23 and 25-27 shall survive any expiration or termination of this Agreement.

22. Contact Us

If you have any questions regarding the meaning of application of this Agreement, please direct such questions to webmaster@smithmicro.com. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.

23. Filtering

Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two web sites GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Smith Micro does not endorse any of the products or services listed at such site.

24. Notice for California Residents

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an e-mail to webmaster@smithmicro.com. You may also contact us by writing to 51 Columbia, Aliso Viejo, CA 92656, or by calling us at (949) 362-5800. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

25. Forward-Looking Statements

Statements in any news release of Smith Micro, contained on the Site or communicated orally or in writing that concern Smith Micro or Smith Micro’s management and that are not historical facts are “Forward-Looking Statements.” Forward-Looking Statements include, without limitation, statements that (a) include the words “believes,” “expects,” “anticipates,” “estimates” or words of similar importance or meaning with reference to Smith Micro or Smith Micro’s management; (b) are specifically identified as forward-looking; (c) describe any of Smith Micro’s plans, objectives or goals for future operations and products; or (d) concern the characteristics and growth of Smith Micro’s markets or customers or Smith Micro’s expected liquidity and capital resources. Forward-Looking Statements are only predictions involving important factors and risks that may cause actual results to differ materially from those discussed in any Forward-Looking Statement. Those important factors and risks include, without limitation, economic, competitive, governmental and technological factors affecting Smith Micro’s operations, markets, products, services and prices. Important factors and risks are described in the current Smith Micro annual report filed with the SEC, and may be detailed from time to time in additional reports and other filings of Smith Micro filed with the SEC. Copies of the most recent reports and other filings of Smith Micro can be accessed through the SEC EDGAR system located at www.sec.gov or may be obtained at no charge from Smith Micro. Smith Micro expressly disclaims any obligation or responsibility to update or revise or supplement any Forward-Looking Statement in any news release or generally to any extent.

26. Claims of Copyright Infringement

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send Smith Micro a notice requesting that Smith Micro remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Smith Micro a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to:

Smith Micro Software, Inc.
Attn: DMCA Agent
51 Columbia, Aliso Viejo, CA, 92656.
By Fax: (949) 362-2300, Attn: DMCA Agent
By Email: copyright@smithmicro.com with the words “DMCA Complaint” in the subject line.

We suggest that you consult your legal advisor before filing a notice or counter-notice.

27. Miscellaneous

This Agreement does not, and shall not be construed to create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Smith Micro. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This, together with all policies referred to herein, is the entire Agreement between you and Smith Micro relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Smith Micro relating to such subject matter. Notices to you may be made via posting to the Site, by e-mail, or by regular mail, in Smith Micro's discretion. The Site may also provide notices of changes to this Agreement or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Smith Micro will not be responsible for failures to fulfill any obligations due to causes beyond its control.

Site © 1998-2014 Smith Micro Software, Inc. unless otherwise noted. All rights reserved.

Last Updated: February 13, 2014